Johnston Law Office, P.C., a North Dakota professional corporation, Plaintiff and Appellant
Jon Brakke, an attorney at law, and Vogel Law Firm, Ltd., a North Dakota professional corporation, Defendants and Appellees
from the District Court of Cass County, East Central Judicial
District, the Honorable Gary H. Lee, Judge. AFFIRMED.
C. Thompson (argued) and DeWayne A. Johnston (appeared),
Grand Forks, ND, for plaintiff and appellant.
Stephen F. Rufer (argued) and Ryan D. Fullerton (appeared),
Fergus Falls, MN, for defendants and appellees.
1] The Johnston Law Office appeals from a judgment dismissing
its claims against Jon Brakke and Vogel Law Firm
(collectively "Vogel"). Johnston argues the
district court erred in granting summary judgment and
dismissing its claims. We affirm.
2] Vogel represented PHI Financial Services, Inc. in an
action against Johnston to recover damages for a fraudulent
transfer. The district court entered judgment against
Johnston for $167, 203.24 in that action. Our decisions in
PHI Fin. Servs., Inc. v. Johnston Law Office, P.C.,
2016 ND 20, 874 N.W.2d 910, and PHI Fin. Servs., Inc. v.
Johnston Law Office, P.C., 2016 ND 114, 881 N.W.2d 216,
set out the factual background of that action.
3] In April 2016 Johnston sued Vogel for tortious
interference with a business relationship, tortious
interference with attorney-client business relationships, and
abuse of process. Johnston alleged Vogel violated state law
while attempting to execute on the judgment entered against
Johnston in PHI Fin. Servs. v. Johnston Law Office.
Johnston claimed Vogel improperly attempted to garnish funds
from Johnston's IOLTA lawyer trust account, operating
account and fees owed by Johnston's clients, and
Vogel's unlawful actions interfered with Johnston's
business relationships with its lending bank and clients.
4] In July 2017 Vogel moved for summary judgment. Vogel
alleged it was undisputed they served Johnston's clients
with garnishment summons and garnished Johnston's bank
accounts on behalf of PHI Financial, but no money was ever
recovered as a result of the garnishments. Vogel argued
Johnston was unable to prove the required elements of its
claims and Vogel was entitled to summary judgment dismissal
of the claims. Johnston opposed the motion.
5] Vogel also moved to quash a subpoena duces tecum Johnston
served on PHI Financial seeking billing information between
Vogel and PHI Financial. Vogel argued PHI Financial was not a
party to this action, Johnston was seeking disclosure of
privileged information, Vogel's billing statements for
PHI Financial were not relevant to any claim or defense, and
the subpoena placed an undue burden on PHI Financial.
Johnston opposed the motion.
6] The district court granted Vogel's motion for summary
judgment and dismissed Johnston's claims. The court
concluded summary judgment was appropriate on the claim of
interference with a business relationship because Johnston
failed to present any evidence Vogel's attempts to
garnish Johnston's accounts proximately caused the
lending bank to sever its business relationship with
Johnston, or that any actual damages were caused by
Vogel's interference. The court granted summary judgment
dismissing Johnston's interference with attorney-client
business relationship claim, concluding Johnston failed to
produce evidence of an independent tortious or unlawful
action, evidence of harm proximately caused by Vogel's
acts or evidence of actual harm. The court also dismissed
Johnston's abuse of process claim, stating that Vogel
violated N.D.R.Civ.P. 62 by garnishing Johnston's bank
accounts, but that Johnston failed to provide evidence of
actual damages. The court also determined Vogel's motion
to quash the subpoena duces tecum was moot.
7] Summary judgment is a procedural device "available
for promptly and expeditiously disposing of a controversy
without a trial if there is no dispute as to either the
material facts or the inferences to be drawn from the
undisputed facts, or whenever only a question of law is
involved." First Nat'l Bank of Hettinger v.
Clark, 332 N.W.2d 264, 267 (N.D. 1983). The moving party
has the initial burden of showing there are no genuine issues
of material fact and it is entitled to judgment as a matter
of law. Barbie v. Minko Constr., Inc., 2009 ND 99,
¶ 5, 766 N.W.2d 458. If the moving party meets its
initial burden, the opposing party may not rest on mere
allegations or denials in the pleadings, but must present
competent admissible evidence to show the existence of a
genuine issue of material fact. Id. at ¶ 6.
8] "Rule 56 requires the entry of summary judgment
against a party who fails to establish the existence of a
material factual dispute as to an essential element of the
claim and on which the party will bear the burden of proof at
trial." Barbie, 2009 ND 99, ¶ 6, 766
N.W.2d 458. "When no pertinent evidence on an essential
element is presented to the trial court in resistance to the
motion for summary judgment, it is presumed that no such
evidence exists." Id. (quoting Riemers v.
City of Grand Forks, 2006 ND 224, ¶ 8, 723 N.W.2d
518). Speculation is not enough to defeat a motion, and a
scintilla of evidence is not sufficient to support a claim.
Barbie, at ¶ 6.
9] On appeal from a district court's order granting
summary judgment we view the evidence in the light most
favorable to the party opposing the motion and give that
party the benefit of all favorable inferences which can be
reasonably drawn from the record. Barbie, 2009 ND
99, ¶ 5, 766 N.W.2d 458. We also decide whether the
information available to the court precluded the existence of
a genuine issue of material fact and entitled the moving
party to judgment as a matter of law. Id. Whether
summary judgment was properly granted is a question of law,
which we review de novo on the entire record. Id.
10] Johnston argues the district court erred in granting
summary judgment on its claim Vogel unlawfully interfered
with the business relationship with its lending bank.
Johnston contends the court erred by failing to consider the
sworn statements of DeWayne ...